Hopkins v. State
Citation | 661 So.2d 774 |
Parties | Ricky HOPKINS v. STATE. CR 93-985. |
Decision Date | 30 September 1994 |
Court | Alabama Court of Criminal Appeals |
James Byrd, Mobile, for appellant.
James H. Evans, Atty. Gen., and Tracy Daniel, Asst. Atty. Gen., for appellee.
Ricky Hopkins, the appellant, pleaded guilty to, and was convicted of, the unlawful possession of cocaine. He was sentenced to five years' imprisonment. This sentence was "split" and he was ordered to serve six months' in incarceration and the balance of the sentence on probation. In pleading guilty, the appellant reserved the right to appeal the issue of the trial court's denial of his motion to suppress, in which he asserted that the cocaine was illegally seized. We The record on appeal does not contain a transcript of the guilty plea proceedings, which were had in circuit court. Although a written motion to suppress was filed in circuit court, there is no indication that an evidentiary hearing was held on that motion. A copy of the transcript of a suppression hearing held in district court was filed as an exhibit to the motion to suppress filed in circuit court.
conclude that the appellant's motion to suppress was due to be granted.
The testimony adduced at the hearing on the appellant's motion to suppress held in district court is as follows. Mobile County Deputy Sheriff Lawrence Battiste IV was the only witness to testify. He related the following information. On the evening of December 23, 1992, Battiste and a number of other deputies were working in the Orange Grove housing projects. He observed the appellant and Michael Thomas "standing near a vehicle in the parking lot" in an area "consider[ed] a high drug area in the housing project." R. 65.
Battiste testified:
Battiste testified that he "didn't know what [the appellant] had tried to flush ... until after [he] retrieved it out of the toilet." R. 74. The bag retrieved from the toilet contained 13 grams of cocaine. A plastic bag containing a small amount of beige rock-like substance was retrieved at the entrance to the residence. Battiste testified that "Deputy Dinkins advised me that he observed Mr. Thomas drop that substance at the door as he attempted to enter the door." R. 67. That bag contained 1.7 grams of cocaine.
The prosecution's only argument in its written response to the appellant's motion to suppress filed in circuit court was that the motion was due to be denied on the authority of California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In that case, the United States Supreme Court held that a seizure does not occur when, without more, a police officer makes a "show of authority" to an individual and the individual fails to yield to the officer's authority. "Thus, a seizure requires either physical control over the suspect, or the suspect must in some form submit to the officer's show of authority." 2 W. Ringel, Searches and Seizures, Arrests and Confessions § 13.2(a)(1) at 13-13 (2d ed. 1994). "[A] police officer who chases a fleeing suspect unsuccessfully has not seized that person." Id. § 13-2(a)(1) at 13-14. Thus, "[e]ven if [the officer's] various decisions to question and follow [the suspect] were unjustified, they did not constitute a 'seizure' and, as a result, are not subject to any Fourth Amendment scrutiny." Tom v. Voida, 963 F.2d 952, 956 (7th Cir.1992).
Hodari, however, cannot justify the seizure in this case because the seizure occurred after the deputies had pursued the appellant into a residence.
1 W. LaFave, Search and Seizure § 2.3(b) at 386 (2d ed. 1987) (footnotes...
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Lawson v. State
...officer's judgment that none exists." ' " ' Woods [v. State], 695 So. 2d [636,] 640 [(Ala. Crim. App. 1996)], quoting Hopkins v. State, 661 So. 2d 774, 779 (Ala. Cr. App. 1994); Hutcherson v. State, 677 So. 2d 1174 (Ala. Cr. App. 1994)."State v. Shelton, 741 So. 2d 473, 477 (Ala. Crim. App.......
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Lawson v. State
...judgment that none exists." ’ " ’ Woods [v. State ], 695 So. 2d [636,] 640 [(Ala. Crim. App. 1996)], quoting Hopkins v. State, 661 So. 2d 774, 779 (Ala. Cr. App. 1994) ; Hutcherson v. State, 677 So. 2d 1174 (Ala. Cr. App. 1994)." State v. Shelton, 741 So. 2d 473, 477 (Ala. Crim. App. 1999) ......
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Whitt v. State, CR-96-0349.
......"[B]ecause the test for determining probable cause is an objective and not a subjective test, this court may `"find probable cause in spite of an officer's judgment that none exists."'" Hopkins v. State, 661 So.2d 774, 779 (Ala.Crim.App.1994) (quoting 1 LaFave § 3.2(b), in turn quoting United States ex rel. Senk v. Brierley, 381 F.Supp. 447 (M.D.Pa.1974), aff'd, 511 F.2d 1396 (3d Cir.), cert. denied, 423 U.S. 843, 96 S.Ct. 77, 46 L.Ed.2d 63 (1975)). "[W]hen considering whether an ......